Court name
High Court of Tanzania

Mwanahamisi Abdallah & Hamisi vs Republic () [1986] TZHC 3 (29 January 1986);

Law report citations
1983 TLR 265 (TZHC)
Media neutral citation
[1986] TZHC 3

Lugakingira, J.: The appellant, a male, was by dress, bearing and word representing G himself at Manyoni as a female and was arrested when he so represented himself to a police decoy.  When examined at Manyoni District Hospital he was found with a wide and tender anus and there was dry semen around the place, suggesting that he was in the homosexual habit.  He was therefore charged with wearing clothes of a female contrary to rule 80(22) of the Township Rules and with committing an unnatural offence contrary H to s. 154(3) of the Penal Code.  In the alternative to the latter count (but very badly framed), he was charged with attempting to commit an unnatural offence contrary to s. 155 of the Penal Code.
He was convicted as charged in the first count and sentenced to three months' I imprisonment.  He was also convicted in the alternative second count and sentenced to three years' imprisonment.  The sentences were ordered to run concurrently.  He then appealed.

As just stated, the first count fell under the Township Rules.  So far as I know, however, A Manyoni has never been declared a township.  The appellant was therefore wrongly charged and convicted under those rules.  It may also be observed for interest that Manyoni was declared a minor settlement vide G.N. No. 115 of 1937, but I was unable to find any minor settlements rules that made provision for this subject.  In 1962 B Manyoni fell under the jurisdiction of the Manyoni District Council by virtue of s. 167 of the Local Government Ordinance, Cap. 333, but I was again unable to establish that the Council was in the habit of making bye-laws or that it ever legislated on the matter.  It follows, in my view, that the appellant was convicted of an offence that did not exist in C Manyoni as such.  I can only say, without deciding, that probably the appellant could have been charged under s. 176(6) of the Penal Code.  His conduct was certainly indecent.  With that said, however, I cannot find my way to sustain the conviction on the first count.
Further, even if the appellant had been properly charged under the Township Rules, the D sentence of three months' imprisonment was illegal.  Under Rule 86, the maximum penalty for the offence is fine not exceeding 40/= or imprisonment for a term not exceeding one month.  It is evident, therefore, that the appellant got a raw deal.
In the second count, I could find no evidence to sustain a conviction either under s. E 154(3) or s. 155.  In the former, a person is guilty of committing an unnatural offence if he permits a male person to have carnal knowledge of him against the order of nature.  Although there was evidence, especially the presence of semen, suggesting a homosexual  act, there was no evidence that the appellant had permitted it.  I therefore cannot fault F the trial magistrate for ignoring the charge as it related to s. 154(3).  As regards s. 155, all that is on record is that the appellant accepted a proposal for love making with Cpl. Wine.  At that juncture Cpl. Wine identified himself and arrested the appellant.  That, in my view, was not sufficient to constitute an attempt.  In attempts there should be an act G directed at the fulfilment of the offence.  In this case, for instance, it woud have made a whole difference had the appellant undressed himself.  But merely to accept a proposal without doing anything to bring it about cannot be said to be an attempt to commit an unnatural offence.  The conviction in the second count was therefore equally bad. H
In the result, I allow the appeal and quash the convictions and sentences on both counts.  Unfortunately, it appears that the appellant has completed the sentences, but he should otherwise be released from custody in so far as these offences are concerned.
I   Appeal allowed.
           
A